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Mt. Abida Khatoon and ors. Vs. Chote Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Criminal
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1230 of 1950
Judge
Reported inAIR1956All155; 1956CriLJ193
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 476 and 476B; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 19
AppellantMt. Abida Khatoon and ors.
RespondentChote Khan and ors.
Appellant AdvocateBishwanath Mehrotra and ;B.S. Darbari, Advs.
Respondent AdvocateMajeed Uddin, Adv.
DispositionRevision dismissed
Excerpt:
criminal - dismiss for default and restoration - section 476b of criminal procedure code, 1898 and order 41 rule 19 of code of civil procedure, 1908 - proceeding under section 476b arose out of a civil suit - civil court gave direction for filing of a complaint - appeal against the order before a civil court - appellate court dismissed the appeal for default - subsequently restored - held, proceedings must be treated as civil proceedings - though the appeal is provided for in section 476b of criminal procedure code, - procedure for hearing would be governed by order 41 of code of civil procedure, 1908 - lower court has jurisdiction to restore. - .....not provide for the same.as the proceedings initiated under section 476 gr. p. c., arose out of civil proceedings and were heard by a civil court and as an appeal under section 476b of the criminal procedure code also lay to the civil court, the proceedings must be treated as civil pro-ceedings to which the civil procedure code applies and not criminal proceedings to which the criminal procedure code will apply, barring of course sections 476, 476a and 476b of the criminal procedure code, vide -- 'jarbandhan v. emperor : air1946all245 , -- 'nawab ali v. madhuri air 1927 oudh 14 (b); and -- 'valab das v. maung ba than air 1924 rang 54 (c).if these were civil proceedings and the civil procedure code applies, then although the appeal is provided for in section 476b, criminal p. c., its.....
Judgment:
ORDER

Agarwala, J.

1. This is an application in revision arising out of proceedings taken at the instance of the applicants under Section 476, Criminal Procedure Code. There was a civil suit No. 352 of 1942, decided by the court of Munsif, Shikohabad, for ejectment from a house and arrears of rent. The suit was decreed on 30-9-1943, Thereafter the plaintiffs filed an application under Section 476, Cr. P. C., against four of the defendants and eight others for their prosecution under Section 193 and other sections of the Penal Code. On 25-5-1946 this application was allowed ex parte and an order for the prosecution of the opposite praties was made.

They went up in appeal to the District Judge who, however, dismissed the appeal for default of appearance on 11-12-1948. The defendants then filed an application for setting aside the ex parte order of dismissal and for restoration of the case to its original number. This application was allowed. In the present application in revision the plaintiffs contend that the court below had no jurisdiction to restore the appeal dismissed for default because the Criminal Procedure Code does not provide for the same.

As the proceedings initiated under Section 476 Gr. P. C., arose out of civil proceedings and were heard by a civil court and as an appeal under Section 476B of the Criminal Procedure Code also lay to the civil court, the proceedings must be treated as civil pro-ceedings to which the Civil Procedure Code applies and not criminal proceedings to which the Criminal Procedure Code will apply, barring of course Sections 476, 476A and 476B of the Criminal Procedure Code, vide -- 'Jarbandhan v. Emperor : AIR1946All245 , -- 'Nawab Ali v. Madhuri AIR 1927 Oudh 14 (B); and -- 'Valab Das v. Maung Ba Than AIR 1924 Rang 54 (C).

If these were civil proceedings and the Civil Procedure Code applies, then although the appeal is provided for in Section 476B, Criminal P. C., its procedure for hearing would be governed by Order 41, C. P. C., and as such when the appeal is dismissed for default and an application for its restoration is made under Order 41, Rule 19, C. P. C., the lower court has jurisdiction to restore the appeal;

2. There is no force in this revision. It isaccordingly dismissed. The opposite parties areentitled to their costs of this revision.


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